In 2002, the United States Court of Appeals for the Ninth Circuit
cemented its reputation for left-wing judicial activism—and drew
nationwide outrage—by ruling the words “under God” in the Pledge of
Allegiance unconstitutional. The Supreme Court reversed that decision
on a technicality, and recently, the Ninth Circuit got to try
again. This time it ruled in favor of the Pledge. But the big news is
not that the Ninth Circuit came to its senses and aligned itself with
every other court that has addressed the issue. The big news is that
the Ninth Circuit did so in uniquely and dramatically conservative
fashion.

Let me explain. There are two basic arguments for why “under God” is
constitutional. One argument—pushed by the Department of Justice at
the Ninth Circuit, and adopted by every other court to uphold the
Pledge—is that “under God” is just an innocuous example of what the
Supreme Court has called “ceremonial deism.” This theory holds that
there have been many references to God in our nation’s history, but
that over time, through rote repetition, these sorts of references
have lost their religious meaning—indeed, all meaning whatsoever—and
are therefore harmless. Kind of like a doddering old relative who says
embarrassing things, but no one minds because he doesn’t know what
he’s saying.

The other argument—pushed by the Becket Fund for Religious Liberty,
which argued the case at the Ninth Circuit—is that “under God” is
neither meaningless nor a primarily religious statement, but an
important statement of political philosophy. Specifically, when
Congress added the phrase “under God” to the Pledge, it was tapping
into a venerable political philosophy of natural rights and limited
government—namely, the idea that our rights are inalienable because
they do not come from the state, but from a “higher power” beyond the
state.

The Becket Fund’s legal brief on this point is a historical tour de
force—tracing the idea that government is limited because it is “under
God” from the writings of Bracton and Coke in the 13th and 17th
Centuries, to Blackstone and the Founders in the 18th, to Lincoln’s
Gettysburg address, and to the present day. Men are “endowed by their
Creator with certain inalienable rights,” said the Declaration of
Independence; “[t]he fate of unborn Millions will now depend, under
God, on the Courage and Conduct of this army,” said General Washington
of his troops; and the Civil War was fought “that this nation, under
God, shall have a new birth of freedom,” said Lincoln’s Gettysburg
address. Thus, as the Becket Fund said, “From this history, it is
incontestable that since even before the Declaration of Independence,
it has been an important part of our national ethos that we have
inalienable rights that the State cannot take away, because the source
of those inalienable rights is an authority higher than the State.” To
strike down “under God” would not only be historically wrongheaded,
but would also rule anathema the very political philosophy of limited
government on which this country was founded.

Remarkably, in an opinion joined by the liberal Judge D.W. Nelson, the
Ninth Circuit adopted the Becket Fund’s argument: “The phrase “under
God” is a recognition of our Founder’s political philosophy that a
power greater than the government gives the people their inalienable
rights. Thus, the Pledge is an endorsement of our form of government,
not of religion or any particular sect.” The Court continued: “The
Framers referred to the source of the people’s rights as the
‘Creator,’ the ‘Supreme Judge,’ and ‘Nature’s God.’ [citing The
Declaration of Independence] The name given to this unknowable, varied
source was not crucial, but the source was a necessary prerequisite to
the concept of limited government that formed the basis of our
nation’s founding.”

In response, Judge Reinhardt, one of the Court’s most liberal members,
suffered what can only be called a judicial hissy fit. In a rambling,
133-page dissent, he called the majority’s limited government argument
“pure poppycock,” first taking an irrelevant swipe at Sarah Palin,
then derisively linking the majority’s position to the Tea Party: “The
majority’s explanation of the phrase bears a suspicious resemblance to
the platform of the Tea Party movement, which proclaims itself to be a
‘group of like-minded people who desire our God given Individual
Freedoms which were written out by the Founding Fathers.’” In
Reinhardt’s view, it was “absurd” to think that “under God” was
anything other than an attempt to “indoctrinate[e] public
schoolchildren with a religious belief.”

Reinhardt’s temper tantrum aside, it is remarkable to reflect on what
has happened here. The most liberal court in the United States just
struck a blow in favor of limited government, acknowledging that this
nation is founded on the idea that our rights come from somewhere
higher than the state—from the “Creator,” the “Supreme Judge,” and
“Nature’s God.” Contrary to what oversensitive atheists would have us
believe, it is not unconstitutional for the government to refer to
this political philosophy, even when using its traditionally theistic
terms. Thus, this ruling safeguards not only the Pledge, but many
other traditional references to God in the public square.

Champions of limited government everywhere should be celebrating this
ruling (and the Becket Fund) for enshrining their most important
philosophical point in the nation’s most liberal court.